the bonds of matrimony and the bonds of constitutional

Hofstra Law Review

Volume 32 | Issue 1 Article 14

2003

The Bonds of Matrimony and the Bonds ofConstitutional DemocracyLynn D. Wardle

Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr

Part of the Law Commons

This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra LawReview by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected].

Recommended CitationWardle, Lynn D. (2003) "The Bonds of Matrimony and the Bonds of Constitutional Democracy," Hofstra Law Review: Vol. 32: Iss. 1,Article 14.Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol32/iss1/14

http://scholarlycommons.law.hofstra.edu/hlr?utm_source=scholarlycommons.law.hofstra.edu%2Fhlr%2Fvol32%2Fiss1%2F14&utm_medium=PDF&utm_campaign=PDFCoverPages

http://scholarlycommons.law.hofstra.edu/hlr/vol32?utm_source=scholarlycommons.law.hofstra.edu%2Fhlr%2Fvol32%2Fiss1%2F14&utm_medium=PDF&utm_campaign=PDFCoverPages

http://scholarlycommons.law.hofstra.edu/hlr/vol32/iss1?utm_source=scholarlycommons.law.hofstra.edu%2Fhlr%2Fvol32%2Fiss1%2F14&utm_medium=PDF&utm_campaign=PDFCoverPages

http://scholarlycommons.law.hofstra.edu/hlr/vol32/iss1/14?utm_source=scholarlycommons.law.hofstra.edu%2Fhlr%2Fvol32%2Fiss1%2F14&utm_medium=PDF&utm_campaign=PDFCoverPages

http://scholarlycommons.law.hofstra.edu/hlr?utm_source=scholarlycommons.law.hofstra.edu%2Fhlr%2Fvol32%2Fiss1%2F14&utm_medium=PDF&utm_campaign=PDFCoverPages

http://network.bepress.com/hgg/discipline/578?utm_source=scholarlycommons.law.hofstra.edu%2Fhlr%2Fvol32%2Fiss1%2F14&utm_medium=PDF&utm_campaign=PDFCoverPages

http://scholarlycommons.law.hofstra.edu/hlr/vol32/iss1/14?utm_source=scholarlycommons.law.hofstra.edu%2Fhlr%2Fvol32%2Fiss1%2F14&utm_medium=PDF&utm_campaign=PDFCoverPages

mailto:[email protected]

THE BONDS OF MATRIMONY AND THE BONDSOF CONSTITUTIONAL DEMOCRACY

Lynn D. Wardle*

I. INTRODUCTION

A. A Voyage of Rediscovery

This Article considers the influence of marriage on the form ofgovernment and the potential impact of legalizing alternative forms ofintimate affiliation upon our constitutional system. Those inquiries raisefoundational, a priori questions about marriage, our constitutionalgovernment, and the relationships between them. The answers to suchbasic questions define a society, but once it is established, the questionsrecede and the reasons for the answers to the foundational questions tendto be taken for granted or forgotten. Every generation in any societyreconsiders some foundational assumptions or principles, and that isgood because as time passes and circumstances change the reasons thatgave rise to some foundational rules become anachronistic, someassumptions lose validity because of changes in the world, and some old,established principles become obsolete. It is also good because it maylead to the rediscovery of critical knowledge and reaffirmation of criticalbeliefs about the core institutions, principles, and values of a society, andreestablishment of the very identity of the society.

Professor Linda C. McClain, the Hofstra University School of Law,and the Hofstra Law Review deserve thanks for sponsoring thisSymposium on Marriage, Democracy, and Families to explore theassumptions regarding the relationship between forms of intimate

* Professor of Law, J. Reuben Clark Law School, Brigham Young University. The

research assistance of William J. Perkins and Justin W. Starr is gratefully acknowledged. This paperwas first presented as remarks in a panel on "Intimate Affiliation and Democracy: BeyondMarriage?" at the Conference on Marriage, Democracy, and Families at Hofstra University Schoolof Law, March 14-15, 2003.

1

Wardle: The Bonds of Matrimony and the Bonds of Constitutional Democracy

Published by Scholarly Commons at Hofstra Law, 2003

HOFSTRA LAW REVIEW

relationships and government. It is a valuable prerogative of scholars aswell as of the young to examine, probe, and challenge basic assumptionsand established orthodoxies. That is part of the formula for socialprogress and improvement of laws. The academic voice is valued in partbecause scholars are expected to know and understand and value thehistory and purpose of the institution or practice being considered, whichis necessary for informed criticism and intelligent change. In thetradition of academic freedom, the respectful but robust expression ofdifferent views and the vigorous debate considering all perspectivesshould go to characterize the academic contribution.

This Article undertakes a voyage of rediscovery to identify andexamine the foundational assumptions about the relationship betweenthe form of intimate associations given legal status in our society and theconstitutional government of our nation. It reveals (in Part II) that at thetime of the founding of the Constitution, it was widely believed that acertain form or organization of family (the marriage-based family) wasessential to cultivate civic virtue, which was understood to be anindispensable prerequisite for any republican (representative democratic)government. The marriage-based family was the substructure uponwhich the superstructure of the Constitution was erected. Next, it shows(in Part III) that the Supreme Court has repeatedly endorsed thatconnection between marriage and our constitutional liberties as ajustification for protection of the marriage-based family as an unwrittenconstitutional liberty. It also establishes (in Part IV) that the generalrelationship between family, virtue, and republican self-government isstill recognized in contemporary political and social theory. It alsosuggests an eclectic, pragmatic theory of critical mass and the marriage-based family. Finally, it suggests (in Part V) that a consequence ofextending marital or marriage-like status to alternative (such as same-sex) relationships will undermine our Constitution.

Before launching on that journey, this Introduction (Part I.B) offersa few comments on the presentation made by Professor Martha Finemanat the Hofstra University School of Law Conference on Marriage,Democracy, and Families ("Conference"). Her comments invite afocused consideration of the relationship between marriage and ourconstitutional democracy.

[Vol. 32:349

2

Hofstra Law Review, Vol. 32, Iss. 1 [2003], Art. 14

http://scholarlycommons.law.hofstra.edu/hlr/vol32/iss1/14

THE BONDS OF MA TRIMONY

B. Some Comments on Professor Fineman sDependency/Abolition Theory

Martha Fineman is one of the most influential feminist scholars inAmerica. At the Conference, she presented her well-known dependencyparadigm for marriage, as well as suggested the abolition of marriage (asa thought exercise, at least). The impact potential of her proposals onmarriage, family, and principles of constitutional democracy deservecareful examination.

Professor Fineman's paper on The Meaning of Marriage correctlydistinguishes individual meanings of marriage from societal meanings ofmarriage and suggests that participants in the debate "be specific aboutthe roles or functions they ascribe to marriage."' Thus, I agree with herthat "society has to justify the coercive expression of its interest inmarriage by stating exactly what that interest is and making theargument that intervention is necessary to preserve or manifest it.",

2

Professor Fineman suggests that "[t]here is no reason for the state tobe involved in the articulation and imposition of [the] terms [ofmarriage] any more than it would be involved in the enforcement ofcontacts in general, 3 and that "for all relevant and appropriate societalpurposes, we do not need the legal institution of marriage at all.",4 As a"thought experiment," she suggests substitution of contract for status inregulating intimate adult relations (such as marriage).5 The first flaw ofthis proposal was identified in Professor Don Browning's thoughtfulpaper; citing Habermas and other social theorists, he observed that onerisk of reducing marriage to contract is the colonization of marketrationality in an inappropriate setting of family life, reducing to mere"cost-benefit logics and functional universalism" relations that havemuch richer, deeper dimensions.

6

1. MARTHA ALBERTSON FINEMAN, The Meaning of Marriage, in THE AUTONOMY MYTH: ATHEORY OF DEPENDENCY (forthcoming Mar. 2004) [hereinafter FINEMAN, The Meaning ofMarriage] (manuscript at 10, on file with author).

2. Id. at 11. However, Professor Fineman may not appreciate and apparently does not valuereligious and historical perspectives in assessing the societal meaning of marriage, and hermarginalization of those views would distort and impoverish the discourse. See, e.g., id. at 10-13(criticizing religious and other traditional influences); id at 3 (positing a vision of marriage "freedfrom the religious and common law history of the institution").

3. Id. at 1.4. Id at 2.5. See id. at 38-44.6. See Don Browning, Critical Familism, Civil Society, and the Law, 32 HOFSTRA L. REV.

313, 322 (2004).

2003]

3



HOFSTRA LAW REVIEW

Professor Fineman takes a few other curious positions in her paper.For instance, there is some inconsistency between opposing theprivatization of marriage in the sense of viewing marriage as a privateenclave into which the state should normally not intrude and regulate,7

and at the same time calling for the privatization of marriage as anenclave for more private contractualization free from state regulation.8

Also, approving the developments of the law which endorse the contractequality of women in premarital agreements rather than taking apaternalistic-protective approach, she cites the Uniform PremaritalAgreement Act,9 which does enforce freely negotiated antenuptialagreements. 10 Curiously, she also suggests that the American LawInstitute's Principles of the Law of Family Dissolution ("ALIPrinciples"), Chapter 7, in this respect is "[1]ike the Uniform PremaritalAgreement Act and the majority of case law,"'' which is surprising sincethe ALI Principles take a huge step back toward protective paternalismby adding numerous grounds for nonenforcement of premaritalagreements-such as because a party could not adequately comprehendhow some factors might affect the outcome (such as having a child, oragreeing to a covenant marriage).' 2 Moreover, it is hard to understandher conclusion that Chapter 6 of the ALI Principles is a step "from[p]rotected to [p]artnered,"'13 since Chapter 6 authorizes a court toretroactively (and paternalistically) impose on nonmarital couplesalimony and property division obligations essentially identical tomarriage, even if the parties or either of them considered and explicitlyrejected marriage, and even if the financial effects of alimony andproperty division were the specific reason for declining to marry. 14

Professor Fineman suggests that historically there has been a lot ofdomestic violence in marriage,' 5 but fails to add that there has been evenmore (much more) domestic violence in virtually any and all other forms

7. See FINEMAN, The Meaning of Marriage, supra note 1, at 1.

8. See id. at 38-44.9. 9B U.L.A. 369 (1983).

10. See FINEMAN, The Meaning of Marriage, supra note 1, at 31; see generally UNIF.

PREMARITAL AGREEMENT ACT, supra note 9.

11. See FINEMAN, The Meaning of Marriage, supra note 1, at 32.12. AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION:

ANALYSIS AND RECOMMENDATIONS ch. 7 (Tentative Draft No. 4, 2000) [hereinafter ALIPRINCIPLES].

13. See FINEMAN, The Meaning of Marriage, supra note 1, at 27, 32-34 (discussing how theALI PRINCIPLES use "the nature and quality of the relationship that the partners have crafted" rather

than formalistic requirements "to assess rights and responsibilities" in domestic relationships).

14. See ALl PRINCIPLES, supra note 12, § 6.05.

15. See FINEMAN, The Meaning of Marriage, supra note 1, at 40.

[Vol. 32:349352

4



THE BONDS OF MATRIMONY

of adult intimate relationships, including dating couples, separated anddivorced couples, and especially in nonmarital couples, including same-sex couples (particularly lesbian couples). 16 While domestic violence,especially in this violent era when violence is celebrated hourly in themass media, is a serious problem that must be constantly addressed, thedata clearly shows that of all forms of intimacy, marriage is the safest,most protective of women, and the safest and most protective forchildren. From the perspective of protecting women from domesticviolence, the prospect of "opening up" marriage to include more violent,abusive, types of intimacy, as Professor Fineman proposes,17 seemsincoherent.

Professor Fineman worries about the vulnerability of thedependent-especially women and children. She generally favorsmaking women completely independent of men (husbands), and givingthem independent control of their dependent children.' 8 One wonderswhether, perhaps, the relationship of marriage (at least successfulmarriages, which are still the majority in this country) is distorted byforcing it into a simplistic dependency-or-independence classificationscheme. Perhaps there is more to most marriages than an all-or-nothingcontest for control, power, and conflict between dependency andindependence. The perspective of interdependence offers an alternativeparadigm that captures much of the richness, mutuality, and practicalreciprocity of real marriages that is overlooked by the independent-dependent model.

Professor Fineman acknowledges that dependency in human familyrelationships is here to stay until we quit having or caring for children.' 9

She fails to mention that there are many other forms of humandependency that are inevitable parts of the human condition. We alsomay lose our independence through illness and through disability, whichmay come unexpectedly to any of us, leaving us significantly dependent.

16. See, e.g., LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY

MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER-OFF FINANCIALLY 155-59 (2000);David Popenoe & Barbara Dafoe Whitehead, Should We Live Together? What Young Adults Needto Know About Cohabitation Before Marriage, A Comprehensive Review of Recent Research, TheNational Marriage Project: The Next Generation Series, at 7, athttp://www.smartmarriages.com/cohabit.htm.

17. See FINEMAN, The Meaning of Marriage, supra note 1, at 38, 41-42.18. See, e.g., MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY

AND OTHER TWENTIETH CENTURY TRAGEDIES 101-25, 166 (1995); Martha Albertson Fineman,Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency, 8 AM. U. J.GENDER SOC. POL'Y & L. 13, 20-22 (1999); Martha Fineman, Masking Dependency: The PoliticalRole of Family Rhetoric, 81 VA. L. REV. 2181, 2182, 2191 (1995).

19. See FINEMAN, The Meaning of Marriage, supra note 1, at 45-46.

2003]

5



HOFSTRA LAW REVIEW

Other forms of dependency besides infancy, disability, and illness arecommon (and important parts) of the human condition. For example,education and upward mobility involve periods of partial (sometimestotal) dependence on others (and the support is often masked byhonorific labels like "scholarship" or "grant" or "prize" or "graduateaward"). Aging produces various forms of dependency (again, oftenmasked by independence-suggesting terms like "pension" or"retirement" or "deferred earnings" or "social security" or "assistedliving"). In our independence-obsessed culture, we employ manyeuphemisms to help us mask the realities of how truly dependent we areon others.) In all decent societies, caring for the dependent is both afamily and a social concern because we care for those we love even (ifnot especially) when they are dependent. Perhaps we need to fear anddemonize dependency less and to begin to nurture a culture in which werespect and value even those who are dependent, and recognize howmuch we who are healthy, able-bodied, financially self-sufficient adultscan learn from them, and how much they enrich our lives and oursociety.

Professor Linda C. McClain has written extensively about theimportance of the family "caring" in a democratic society, and of theunfortunate devaluation of "caring" in contemporary America.

Caring for each other is the most basic form of civic participation. Welearn to care in families, and we enlarge our communities of concern aswe mature. Caring is the essential democratic act, the prerequisite tovoting, joining associations, attending meetings, holding office and allthe other ways we sustain democracy. Care, the noun, requires familiesand workers who care, the verb. Caring, the activity, breeds caring, theattitude, and caring, the attitude, seeds caring, the politics.20

She has noted that some emphasis on the economic value of personalwork "seems to neglect the idea that caregiving-that is, attending tochildren's needs for care-makes a valuable social contribution worthyof recognition and support., 21 It is "vital to affirm not only the publicvalue of care work, but also the importance of such work as part of what'working families'-as well as other caregivers-do., 22

20. Linda C. McClain, Care as a Public Value: Linking Responsibility, Resources, andRepublicanism, 76 CHI.-KENT L. REV. 1673, 1681 (2001) (citing Deborah Stone, Why We Need aCare Movement, NATION, Mar. 13, 2000, at 13, 15).

21. Linda C. McClain, Citizenship Begins at Home: The New Social Contract and WorkingFamilies, in PROGRESSIVE POLITICS IN THE GLOBAL AGE 95, 97 (Henry Tam ed., 2001) [hereinafterMcClain, Citizenship Begins at Home].

22. Id. at 100.

(Vol. 32:349

6




Professor Fineman has long been a leading voice for recognizingthe value of the child-rearing and home-building work that women do aswell as for the economic independence of women. Yet one wonderswhether the demonizing of dependence and the rejection ofinterdependence marriage models conveys a message that stigmatizesand marginalizes women who devote themselves first and primarily tochildrearing and homemaking roles, as well as devalues the aged, thepoor, the disabled, and others who are in dependency conditions andperiods of the human life cycle. The abolition of marriage would harm,not help, most women who care for children and others, and wouldcertainly disadvantage those who are dependent upon them. Beyond theprivate consequences for individuals and families, what effect would theabolition of marriage have upon our constitutional government?Professor Fineman's thought exercise invites us to consider the publicconsequences of that proposal.

II. FOUNDERS' PERSPECTIVES ON THE MARITAL FAMILY AS THE

SEEDBED OF REPUBLICAN CIVIC VIRTUE

We come into possession of our public institutions and values thesame way we come into possession of public buildings andmonuments-someone else builds them and we simply inherit them.And like public buildings and monuments, our public institutions andvalues tend to deteriorate and wear out if they are neglected or notmaintained. It is difficult, expensive, and burdensome to restore ahistoric building to a condition of high functional strength and beautywhen it has been neglected and allowed to fall into disrepair. The sameis true of public institutions and values. The cost of neglecting structureslike historic buildings and monuments is paid in dollars and cents thatbuy mortar, bricks, shingles, and paint. The cost of neglecting marriageis paid in human suffering, in lost generations, and in years (sometimeslifetimes) of sorrow, pain, and regret. Many in our society are payingthat price already. If we embrace the legalization of alternative familyforms as equivalent to marriage, the toll will be even higher. Thus, it isimportant for each generation to rediscover for itself the foundationalprinciples upon which our constitutional system is built, and theprinciples by which it operates, and the principles by which it is nurturedand preserved.

To rediscover the foundational principles for the Americanconstitutional system, it is helpful to consider what the Founders wroteand said about fundamental relations and government. The Founders

20031

7



HOFSTRA LA W REVIEW

believed emphatically that certain preconditions were essential tosuccessfully create and maintain the Constitution, and among thosepreconditions were marriage and civil virtues nurtured in the marriage-based home.23 James Madison noted in Federalist No. 55 that humanshave a dual nature (for good and for evil), and that "[r]epublicangovernment presupposes the existence of [positive] qualities in a higherdegree than any other form."

2 4

The Founders considered Americans' "domestic habits" (or, as deTocqueville later called them, "habits of the heart") as necessary"preconditions" for maintaining the constitutional Republic. 25 TheFounders included these domestic habits among the cornerstones ofliberty, even though they did not consider them "rights" in the narrowmeaning of the word that then prevailed.26 These domestic habitsincluded and were nurtured by the traditions of marriage, parentalauthority, and family integrity.27 The domestic institutions of marriageand family, especially, were believed to foster virtue, which was deemedthe indispensable prerequisite for a republican form of government. Forexample, Benjamin Franklin stated that "only a virtuous people arecapable of freedom. As nations become corrupt and vicious, they havemore need of masters., 28 Madison likewise declared: "To suppose thatany form of government will secure liberty or happiness without anyvirtue in the people, is a chimerical idea., 29 John Adams acknowledged:"'Our constitution was made only for a moral and religious people. It is

23. See, e.g., Allan Carlson, The Family and the Constitution, in DERAILING THECONSTITUTION: THE UNDERMINING OF AMERICAN FEDERALISM 128-29 (Edward B. McLean ed.,

1995) (stating that "the family was deeply embodied in the unwritten constitution of the new UnitedStates, in the social views that the Founders held" and arguing "that their work rested onassumptions about the social order that need underlie a free republic, assumptions about the sort ofpeople they were dealing with, and about the way that we citizens would live").

24. THE FEDERALIST NO. 55, at 346 (James Madison) (Clinton Rossiter ed., 1961) (emphasisadded).

25. See ALEXIS DE TOCQUEVILLE, 1 DEMOCRACY IN AMERICA 310 (Phillips Bradley ed.,1972) (referring to the "habits of the heart" as the American character traits which form thefoundation for American democracy); see also FRANCIS J. GRUND, THE AMERICANS, IN THEIRMORAL, SOCIAL, AND POLITICAL RELATIONS 171 (Johnson Reprint Corp. 1968) (1837).

26. For example, John Adams observed: "The foundation of national morality must be laid inprivate families." JOHN ADAMS, 4 DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS 123 (L.H.

Butterfield et al. eds., 1962). Likewise, "George Mason argued that republican government wasbased on an affection 'for alters and firesides."' Bruce Frohnen, The Bases of ProfessionalResponsibility: Pluralism and Community in Early America, 63 GEO. WASH. L. REV. 931, 947(1995) (quoting George Mason, Opposition to a Unitary Executive (June 4, 1787), reprinted in THEANTI-FEDERALIST PAPERS AND THE CONSTITUTIONAL DEBATES 47 (Ralph Ketcham ed., 1986)).

27. Id.28. THE WRITINGS OF BENJAMIN FRANKLIN 569 (Albert H. Smyth ed., 1970).

29. THE WRITINGS OF JAMES MADISON 223 (Gaillard Hunt ed., 1904).

[Vol. 32:349

8




wholly inadequate to the government of any other.'"30 Thus, "[v]irtue...was the substructure upon which the superstructure of constitutionalrights and government was built. If the foundation slipped, the

government and the liberties it protects would not survive.' And virtue

was generated and guarded first and foremost in the home.Nancy Cott's political history of marriage in the United States

concurs that the Founders saw what she calls "Christian marriage" as the

essential seedbed of republican virtue. 32 "American revolutionaries'concern with virtue as the spring of their new government motivated[their] attention to marriage. 3 3 "'Virtue,' the political catchword of the

Revolution, meant not only moral integrity, but public-spiritedness....How would the nation make sure that republican citizens would appearand be suitably virtuous? Marriage supplied an important part of the

answer."34 American republicans saw "marriage as a training ground ofcitizenly virtue. 3 5 Likewise, "it served as a 'school of affection' where

citizens would learn to care about others. 36 One founding era writer

noted that "by marriage 'man feels a growing attachment to humannature, and love of his country.' 37

Marriage also provided the Founders with "a model of consensualjuncture, voluntary allegiance, and mutual benefit. 3 8 Professor Cottnotes that

European political theorizing had long noted that legal monogamybenefited social order, by harnessing the vagaries of sexual desire andby supplying predictable ... support for the young and the dependent.The republican theory of the new United States assumed this kind ofutilitarian reasoning and went beyond it, to give marriage a politicalreason for being. From the French Enlightenment author the Baron deMontesquieu, whose Spirit of the Laws influenced central tenets of

30. JOHN R. HowE, JR., THE CHANGING POLITICAL THOUGHT OF JOHN ADAMS 165 (1966)

(quoting from John Adams' "Reply to the Massachusetts Militia," Oct. 11, 1789).31. Lynn D. Wardle, The Use and Abuse of Rights Rhetoric: The Constitutional Rights of

Children, 27 LOY. U. CHI. L.J. 321, 341 (1996).32. See NANCY F. COTT, PUBLIC Vows: A HISTORY OF MARRIAGE AND THE NATION 9-23

(2000); see also Frohnen, supra note 26, at 941-42 (1995) (stating founding generation believed thatvirtue would be cultivated in local communities and that "the main task of government was to fosterand protect the multitude of associations in which proper character was formed").

33. COTT, supra note 32 at 18.34. Id.35. Id.36. Id. at 19.37. Id.38. Id. at 18.

2003]

9



HOFSTRA LA W RE VIE W

American republicanism, the founders learned to think of marriage andthe form of government as mirroring each other.39

John Adams concluded that

the foundations of national Morality must be laid in private Families.In vain are Schools, Accademics [sic] and universities instituted, ifloose Principles and licentious habits are impressed upon Children intheir earliest years .... How is it possible that Children can have anyjust Sense of the sacred Obligations of Morality or Religion if, fromtheir earliest Infancy, they learn that their Mothers live in habitualInfidelity to their fathers, and their fathers in as constant Infidelity totheir Mothers.

40

Professor Cott observes that Adams was not alone in this belief. Formany "Revolutionary-era leaders, marriage had several levels of politicalrelevance, as the prime metaphor for consensual union and voluntaryallegiance, as the necessary school of affection, and as the foundation ofnational morality., 41 Compared to other forms of marriage, Christian"[m]onogamy... stood for a government of consent, moderation, andpolitical liberty., 42 For example, "the most widely read college text onthe subject in the first half of the nineteenth century," William Paley'sThe Principles of Moral and Political Philosophy, "touted the privatehappiness and social benefits of monogamous marriage., 43 The beliefthat polygamy bred "despotism, and coercion," while the Christianmarriage of monogamy fostered "political liberty, and consent...resonated through the political culture of the United States" not onlyduring the Founding decades, but "all during the subsequent century."4

America's Founders understood marriage and the family to be"schools of republican virtue., 45 The family was one of the "pillars ofrepublican virtue., 46 With Edmund Burke, they believed "that 'to be

39. Id. at 10.

40. Id. at 21.41. Id.42. Id. at 22.43. Id. (discussing William Paley, THE PRINCIPLES OF MORAL AND POLITICAL PHILOSOPHY

(1785)).44. Id. at 23.45. Mary Lyndon Shanley, Review Essay, Public Values and Private Lives: Cott, Davis, and

Hartog on the History of Marriage Law in the United States, 27 LAW & SOC. INQUIRY 923, 926

(2002); see also Cott, supra note 32, at 10.46. See Gerald J. Russello, Liberal Ends and Republican Means, 28 SETON HALL L. REV.

740, 756 (1997) (reviewing PHILIP PETTIT, REPUBLICANISM: A THEORY OF FREEDOM ANDGOVERNMENT (1997)) (maintaining that "two significant pillars of republican virtue" were religion

[Vol. 32:349

10




attached to the subdivision, to love the little platoon we belong to insociety, is the first principle (the germ as it were) of public affection.' 47

Thus,

George Mason argued that republican government was based on anaffection "for alters and firesides." Only good men could be free; menlearned how to be good in a variety of local institutions-by thefiresides as well as at the altar.... Individuals learned virtue in theirfamilies, churches, and schools.48

The Founders were heavily influenced by classical Greek andRoman writings. 49 Aristotle noted that the "first concern" of theresponsible legislator would be to set rules to regulate marriage. 50

Aristotle (emulating Plato, in part) prescribed a whole series of laws onthe ideal ages, qualities, and duties of husband and wife to each otherand to their children.

The Roman Stoics repeated and glossed these classical Greek viewsabout marriage, even while many of them celebrated celibacy as thehigher ideal. Cicero (106-34 B.C.), the leading jurist and moralist ofhis day, for example, called marriage a "natural partnership" of theperson and property of husband and wife that served for procreation,for companionship, and ultimately for the broader cultivation of"dutiful affection, kindness, liberality, good-will, courtesy, and theother grace of the same kind."51

Cicero described marriage as creating "the first bond" of society and as"the foundation of civil government, the nursery, as it were, of thestate. 5 2 Legal scholars have noted that numerous other well-known

and family); see also Anne C. Dailey, Federalism and Families, 143 U. PA. L. REV. 1787, 1835-51(1995) (linking state control of family matters to nurturing republican virtue).

47. RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN 55 (1987) (quoting EDMUNDBURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE 195 (Harvard Classics 1909)).

48. Frohnen, supra note 26, at 946-47 (quoting Mason, supra note 26, at 47).49. See, e.g., John Adams, A Defence of the Constitutions of Government of the United States

ofAmerica, Letter XXIX (1787), available at http://www.constitution.org/jadams/jal_00.htm.50. ARISTOTLE, POLITICA (Benjamin Jowett trans.), in 10 THE WORKS OF ARISTOTLE 1334, at

28-32 (W. Ross. ed. 1921).51. John Witte, Jr., The Goods and Goals of Marriage, 76 NOTRE DAME L. REV. 1019, 1024

(2001) (quoting CICERO, DE FINIBUS bk. III, ch. 23, § 65 (H. Rackham trans., 1983)).52. Wendy Herdlein, Something Old, Something New: Does the Massachusetts Constitution

Provide for Same-sex 'Marriage'?, 12 B.U. PUB. INT. L.J. 137, 137 n.l (2002) (quoting fromCICERO, DE OFFICIIS, bk. I, ch. xvii, at 57 (Walter Miller trans., 1913)) ("For since the reproductiveinstinct is by Nature's gift the common possession of all living creatures, the first bond of union isthat between husband and wife; the next, that between parents and children; then we find one home,with everything in common. And this is the foundation of civil government, the nursery, as it were,

2003]

11



HOFSTRA LA W REVIEW

Greek and Roman writers emphasized the essential social importance ofmarriage.

5 3

Other influential political philosophers familiar to the Founderstaught the foundational role of marriage in society. For example, JohnLocke's influential Second Treatise of Government explains that "[t]hefirst Society was between Man and Wife, which gave beginning to thatbetween Parents and Children," which was "made by a voluntaryCompact between Man and Woman. 54 Clearly, the Founders' belief thatmarriage was the foundation of the Constitution, and that the form ofgovernment of a society reflected the form and principles of marriage inthe society was hardly a novel insight even in 1787.

The connection between marriage and social order was recognizedby observers from Europe. Shortly after the founding of the AmericanRepublic, the perceptive French social commentator, Alexis deTocqueville, observed:

There is certainly no country in the world where the tie of marriage ismore respected than in America or where conjugal happiness is morehighly or worthily appreciated.... [W]hen the American retires fromthe turmoil of public life to the bosom of his family, he finds in it theimage of order and of peace. There his pleasures are simple andnatural, his joys are innocent and calm; and as he finds that an orderlylife is the surest path to happiness, he accustoms himself easily tomoderate his opinions as well as his tastes. ... [T]he American derivesfrom his own home that love of order which he afterwards carries withhim into public affairs. 55

He also remarked that "the feeling [a citizen] entertains towards the stateis analogous to that which unites him to his family. 56 "Tocquevilleconcluded that family stability produces social responsibility and order,whereas family instability fosters social misbehavior., 57

of the state .... Then follow between these in turn, marriages and connections by marriage, andfrom these again a new stock of relations; and from this propagation and after-growth states havetheir beginnings.").

53. See Witte, supra note 51, at 1022-29 (citing Plato, Plutarch, Musonius Rufus, and others).54. JoiN LOCKE, SECOND TREATISE OF GOVERNMENT §§ 77, 78 in Two TREATISES OF

GOVERNMENT 362 (Peter Laslett ed., rev. ed. 1963).55. DE TOCQUEVILLE, supra note 25, at 315.56. Id. at 98.57. Sean E. Brotherson & Jeffrey B. Teichert, Value of the Law in Shaping Social

Perspectives on Marriage, 3 J.L. & FAM. STUD. 23, 28 (2001); see also Katherine Shaw Spaht, Forthe Sake of the Children: Recapturing the Meaning of Marriage, 73 NOTRE DAME L. REV. 1547,1563 (1998).

[Vol. 32:349

12




Thus, throughout the founding era, the marriage-based family wasseen as the foundational unit of society and the seedbed of government.The Constitution was seen as requiring and resting upon the foundationof marriage-based families where the necessary republican civil virtueswould be nurtured.

III. SUPREME COURT RECOGNITION OF THE MARITAL FAMILY AS THE

SPRING OF CONSTITUTIONAL SOCIETY

The importance of marriage for society and the link between themarital family and the form of government have frequently been notedby the Supreme Court of the United States. In Reynolds v. UnitedStates,58 upholding congressional legislation that banned polygamy fromthe federal territories and rejecting a free exercise of religion claim forexemption from the law, the Court described the high and central statusof marriage in these terms: "Upon it society may be said to be built, andout of its fruits spring social relations and social obligations and duties,with which government is necessarily required to deal."59 The Courtsuggested that polygamy was associated with the autocratic, despotic,oppressive societies of "Asiatic and of African people," and "fetters thepeople in stationary despotism," while monogamy was the well-spring ofthe enlightened, liberal societies of the "northern and western nations ofEurope.

60

In another polygamy case, Murphy v. Ramsey,6 1 the Court reiteratedthe connection between marriage and civilization, including form ofgovernment.

[C]ertainly no legislation can be supposed more wholesome andnecessary in the founding of a free, self-governing commonwealth...than that which seeks to establish it on the basis of the idea of thefamily, as consisting in and springing from the union for life of oneman and one woman in the holy estate of matrimony; the surefoundation of all that is stable and noble in our civilization; the bestguaranty of that reverent morality which is the source of all beneficentprogress in social and political improvement. 62

58. 98 U.S. 145 (1878).59. Id. at 165.60. Id. at 164-65, 166.61. 114 U.S. 15(1885).62. Id. at 45.

2003]

13



HOFSTRA LAW REVIEW

A short time later, in Maynard v. Hill,6 3 Justice Field noted that"[m]arriage, as creating the most important relation in life, [has] more todo with the morals and civilization of a people than any otherinstitution. '64 The Court upheld legislative divorce even without basicprocedural protection because of the importance of sustaining stateauthority to regulate marriage. 65

In Davis v. Beason,66 the Mormon defendant was convicted ofattempting to register to vote in violation of an Idaho territorial lawwhich denied Mormons the right to vote or hold public office.67

Upholding that draconian provision, Justice Field emphasized theconnection between social order and marriage form.

Bigamy and polygamy are crimes by the laws of all civilized andChristian countries.... They tend to destroy the purity of the marriagerelation, to disturb the peace of families, to degrade woman and todebase man. Few crimes are more pernicious to the best interests ofsociety and receive more general or more deserved punishment. 68

In Skinner v. Oklahoma,69 and again in Loving v. Virginia,7" theCourt emphasized that "[m]arriage and procreation are fundamental tothe very existence and survival of the race."' In Griswold v.Connecticut,7 2 the Court observed:

Marriage is a coming together for better or for worse, hopefullyenduring, and intimate to the degree of being sacred. It is anassociation that promotes a way of life, not causes; a harmony inliving, not political faiths; a bilateral loyalty, not commercial or socialprojects. Yet it is an association for as noble a purpose as any involvedin our prior decisions. 73

Six years later, in Boddie v. Connecticut,74 the Supreme Courtemphasized that "marriage involves interests of basic importance in our

63. 125 U.S. 190(1888).64. Id. at 205.65. See id at 205-06.66. 133 U.S. 333 (1890).67. See id. at 341, 346-47.68. Id. at 341.69. 316 U.S. 535 (1942).70. 388 U.S. 1 (1967).71. Skinner, 316 U.S. at 541; see also Loving, 388 U.S. at 12 (stating that "[m]arriage is one

of the 'basic civil rights of man,' fundamental to our very existence and survival").72. 381 U.S. 479 (1965).73. Id. at 486.74. 401 U.S. 371 (1971) (invalidating requirement that indigent parties pay divorce filing

[Vol. 32:349

14




society,07 5 because it relates to the States' interest in "the stability oftheir social order, . . . the good morals of all their citizens, and. . . theneeds of children from broken homes. The States, therefore, haveparticular interests in the kinds of laws regulating their citizens whenthey enter into, maintain, and dissolve marriages. 7 6

The value of marriage to social interests in paternal support ofchildren and for rehabilitating incarcerated criminals can be inferred inthe last two Supreme Court cases addressing the constitutionality ofmarriage regulations.77 As recently as 2001, the Supreme Court may beinterpreted to have acknowledged the social consequences of marriageand family form in upholding a paternity rule of the Immigration andNaturalization Service that imposed a higher burden of proof on unwedfathers than either married fathers or unwed or married mothers. 78

Clearly, the Supreme Court has recognized and endorsed the connectionbetween form of marriage and social order, including nature ofgovernment.

IV. CONTEMPORARY RECOGNITION OF THE ROLE OF THE MARITAL

FAMILY IN CULTIVATING CIVIC VIRTUE

A number of contemporary theories of political and social sciencerecognize the importance of marriage for the stability of society and theform of government. Civic republican theories emphasize theimportance of marriage and marriage-based families in nurturing thehabits, commitments, and virtues of citizenship that are necessary for aliberal democratic republic to flourish. Liberal theories of the role ofgovernment in liberating individuals to pursue happiness also underscorethe value of marriage. Consequentialist theories based on utilitarianassumptions have inspired a great amount of social science research thatvalidates the importance of marriage for the well-being of individuals,families, and society.

A. Contemporary Civic Republicanism Supports the Importance ofMarriage for Our Constitutional System

The modem "communitarians" and civic republicans have calledattention to the role of the marriage-based family in fostering civic

75. Id. at 376.76. Id. at 389 (Black, J., dissenting).77. See Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978).78. SeeNguyenv. INS, 533 U.S. 53 (2001).

20031

15



HOFSTRA LA W REVIEW

republican principles. The basic theory is well expressed by Jane B.Weinhold:

The family is the social microcosm that creates and reflects thestrengths and weaknesses of the larger social structures. The family, asthe basic building block of society, is also the primary agent ofsocialization and acculturation. The family experience may be sopowerful in shaping a person's behavior that it creates an internalconstruct of reality that is then used to create the external world. Fromthe experiences while growing up in their families, people use whatthey learn in social institutions, such as schools, businesses andGovernments. Individuals who experienced democratic practices intheir families are more likely to support, and expect, democratic socialinstitutions, while those who experienced totalitarian practices in theirfamilies are likely to tolerate and create totalitarian social structures.79

Professor Linda C. McClain adds:

There is a close affinity between virtues important to democratic self-government and those important to personal self-government becauseself-government begins with "governing the self," a task taughtespecially well by families. For example, one report, A Call to CivilSociety, characterizes the family as first among the seedbeds of virtueand the "cradle of citizenship," because there a child learns "theessential qualities necessary for governing the self: honesty, trust,loyalty, cooperation, self-restraint, civility, compassion, personalresponsibility, and respect for others." Families are at the heart of theagenda for renewal: a core goal for "moral renewal" of democracy isstemming the "steady break-up of the married couple child-raisingunit," which is viewed as the "leading propeller of our overall socialdeterioration."

80

Professor McClain elsewhere cites contemporary political theoriesthat support the belief that our constitutional order is built upon certainpresuppositions. Building on the writing of Michael Sandel,8' ProfessorMcClain asserts that "[t]he Constitution permits and depends upon, if notauthorizes or even requires, a formative project," meaning "the task ofconstituting civic virtue [by] fostering persons' capacities for democratic

79. JANAE WEINHOLD & BARRY WEINHOLD, PARTNERSHIP FAMILIES: BUILDING THESMALLEST DEMOCRACY AT THE HEART OF SOCIETY 3 (United Nations, Occasional Papers on the

Family No. 6, 1993).80. Linda C. McClain, The Domain of Civic Virtue in a Good Society: Families, Schools, and

Sex Equality, 69 FORDHAM L. REv. 1617, 1627-28 (2001) [hereinafter McClain, The Domain of

Civic Virtue].

81. See MICHAEL J. SANDEL, DEMOCRACY'S DISCONTENT 132-33, 321-24 (1996).

[Vol. 32:349

16




self-government,, 82 and that "in a good society, families (ideally) willplay a role in cultivating civic virtue (and democraticself-government),... [and] other forms of virtue and contribute vitallyto personal self-government. 8 3 Marriage is important in democraticformation theory because there is a "spillover" between the developmentand qualities of personal virtue (the qualities and character of being agood person) that are manifest in and essential to happy family living,and the development and qualities of civic virtue ("the set of qualities ofcharacter, skills, and dispositions that are necessary for democratic self-government.").

84

Noted advocate of same-sex marriage, William Eskridge, also citesSandel in developing a theoretical argument that legalizing same-sexmarriage would promote the common good in a framework of "Rawlsianrights and Sandelian remedies., 85 However, even Professor Eskridgeconcedes that marriage as the union of man and woman is deeplyimbedded in our cultural and cognitive awareness and widely associatedwith the type of virtue (selflessness) that we want to cultivate in thecitizens of our country.

Most Americans associate male-female marriage not only withprocreation, but also with the complementarity of the sexes, romanticlove till death do us part, and the ideal of a happy childhood presidedover by mom and dad. At a higher level of abstraction, different-sexmarriage is closely associated with such concepts as unselfishness andcitizenship, because the best examples we can imagine of other-regarding conduct involve romantic love between married husbandsand wives, matched only by the parental love that the (married) motherand father show their offspring.... Same-sex marriage, for manypeople, destabilizes patterns of thinking that go beyond theconstruction of the family.86

82. McClain, The Domain of Civic Virtue, supra note 80, at 1619; see also Linda C. McClain& James E. Fleming, Some Questions for Civil Society-Revivalists, 75 CHI.-KENT L. REv. 301, 308(2000) (civil society is as important to "enabling people to decide how to live their own lives" as itis to "preparing them [to participate] in democratic life"); Linda C. McClain, Toward a FormativeProject of Securing Freedom and Equality, 85 CORNELL L. REv. 1221, 1249-57 (2000) (consideringtheories of how government can foster culture that preserves freedom and equality).

83. McClain, The Domain of Civic Virtue, supra note 80, at 1621.84. Id. at 1624-28; see also McClain, Citizenship Begins at Home, supra note 21, at 101

(arguing that childcare should be recognized "as a component of [parents'] responsible self-government" which is linked with "other forms of personal responsibility").

85. WILLIAM N. EsKRiDGE, JR., EQUALITY PRACTICE 165 (2002).

86. Id. at 114.

2003] 365

17



HOFSTRA LA W REVIEW

These views have been long recognized in modem scholarship.8 7

The family has been recognized as the "launching pad" from which anindividual enters public life.88 There is a "cognitive fit" between thefamily and democracy.89 Brigitte Berger argues that while childrenreared in marriage-based families learn the virtues and skill that allowthem to progress in life and democracy to flourish, children reared insingle-parent families are more prone to authoritarian styles ofgovernment or leadership, and less politically inclined.90 Robert Putnamnotes that "the quality of governance [is] determined by longstandingtraditions of civic engagement" developed in "networks of organizedreciprocity and civil solidarity,"9' the family is an important source ofsocial capital, and "successful marriage (especially if the family unitincludes children) is statistically associated with greater social trust andcivic engagement.

92

B. Liberal Theories Support the Value of Marriage for theIndividual Pursuit of Happiness

Liberal theories generally see the purpose of the state to protectindividual liberty so that by the "pursuit of happiness" men may findpersonal fulfillment that they cannot experience when they are actingunder compulsion. Liberty is the essential requirement for individual_pursuit of happiness, and the pursuit of happiness produces social goods,including the preservation of liberty and stability in the social order.Thus, in a theory of familial liberalism, marriage is the formative placewhere the skills for developing individual happiness are learned, and thepreconditions for the successful exercise of personal liberty aremastered.

87. In 1940, Una Baird Sait explained that democracy is best taught in the home for threereasons: (1) children are educated in the home from the day they are bom; (2) family life offers day-to-day experience with democracy; and (3) continued practice in democratic living "fosters thegrowth towards full human stature of every family member." Una Baird Sait, Democracy and the

Family, LIVING, Feb. 1940, at 7.

88. See Brigitte Berger, Roots of Prosperity: The Unexpected Influence of the Family,

CURRENT, June 1998, at 7.

89. Id. at 8-9.

90. See id. at 9.

91. Robert D. Putnam, Bowling Alone: America's Declining Social Capital, J. DEMOCRACY

66(1995).92. Robert D. Putnam, Tuning, In, Tuning Out: The Strange Disappearance of Social Capital

in America, 28 PS: POL. SC. & POL. 664, 671 (1995) (noting that "married men and women are

about a third more trusting and belong to about 15-25% more groups than comparable single men

and women").

[Vol. 32:349

18




Dean Bruce C. Hafen has explored from this perspective theimportance of marriage and kinship ties as a foundation for a liberal(democratic) society. 93 He asserts that the marriage-based family has"contributed enormously to the ultimate purposes of a democraticsociety by providing the stability and the structure that are essential tosustaining individual liberty over the long term."94 By providing for theneeds of children (especially their needs for parental bonding andaffection), marriage helps lay the foundation for their moral and politicalmaturation as responsible wielders of personal liberty. 95 As the place ofmost influential socialization, the home teaches individuals (especiallychildren, but also spouses and parents) the lesson of "obedience to theunenforceable," which is the first principle of a free (liberal) society.96 Inthe family, spouses, parents, and children learn "[t]o be attached to thesubdivision, to love the little platoon we belong to in society," whichBurke designated "the first principle ... of public affections. 97 As aprimary mediating structure in our democracy, the family (whatever itsform) is a value-generating, and hence state policy-influencinginstitution, that provides "emotional and spiritual comfort, as well ashuman fulfillment" for individuals, and as protects them from theoppressive forces of the state.98 As Hafen notes, D.H. Lawrence wrote:"[T]he marriage bond.., is the fundamental connecting link in Christians6ciety. Break it, and you will have to go back to the overwhelmingdominance of the State, which existed before the Christian era."99

Lawrence further declared that

perhaps the greatest contribution to the social life of man made byChristianity is-marriage.... Christianity established the littleautonomy of the family within the greater rule of the State .... It ismarriage, perhaps, which has given man the best of his freedom ....Man and wife, a king and queen with one or two subjects, and a fewsquare yards of territory of their own: this, really, is marriage. It is truefreedom. 100

93. See Bruce C. Hafen, The Constitutional Status of Marriage, Kinship, and SexualPrivacy-Balancing the Individual and Social Interests, 81 MICH. L. REv. 463, 464-91 (1983).

94. Id. at 473.95. See id. at 473-75.96. See id. at 476-78.97. Id. at 479.98. Id. at 479-82.99. Id. at 483 (quoting D. H. LAWRENCE, A PROPOS LADY CHATTERLEY'S LOVER 35-36

(Haskell House Publishers 1973) (1930)).

100. Id.

2003]

19



HOFSTRA LAW REVIEW

Thus, the role of the marriage-based family in liberating humanity andproviding them with their greatest chance for the successful pursuit ofhappiness goes to the heart of the purpose of the state in modem liberalpolitical theory. Professor Hafen notes that

marriage has become "an enormously important element in the rise ofstable political systems and dynamic economies." "As Professor Hayekhas rightly pointed out, the rise of the West is due in great part to itsability to define the law with certitude .... At the heart of any stablelaw of property is a clear and universal legal doctrine of marriage."'' 1

Further, "[c]oncepts such as marriage... have played a supremelyimportant role over the years in staking out broad, clear boundaries thatgive guidance to an arm of the legal system that is already overwhelmedwith subjective determinations." 10 2 Thus, liberal political theory viewsmarriage and family as important in empowering individuals to achievepersonal freedom and succeed in their "pursuit of happiness."

C. Consequentialist Social Science Research Confirms theImportance of Marriage for Society

Utilitarian theories promoting what works best to foster the well-being of most citizens underlie much of the social science research aboutthe effects of various family forms and styles that have been verypopular in recent years. Social science research shows clearly, bothdirectly and indirectly, that marriage is good for society because"providing children the care, nurturing, and moral education necessary tobecome good people ultimately helps them to become good citizens. 10 3

One notable compilation of social science research is Linda Waiteand Maggie Gallagher's The Case for Marriage.10 4 Waite, a Universityof Chicago sociologist, and respected journalist Gallagher noted researchfinding that married men and women enjoy better health than theirunmarried peers, and the effects of divorce on health are comparable tothe effects of smoking-for men divorce reduces life expectancy aboutthe same as smoking one pack of cigarettes per day. 105 A five-year studyshows that married people have better emotional health, even after

101. Id. at 485 (quoting Johnson, The Family as an Emblem of Freedom 2 (Am. Fam. Inst.,

1980)).

102. Id. at 489.103. McClain, The Domain of Civic Virtue, supra note 80, at 1641.104. WAITE & GALLAGHER, supra note 16.

105. Seeid. at47.

[Vol. 32:349

20



THE BONDS OF M TRIMONY

controlling for other factors, including selection bias.' 0 6 Studies showthat married couples have more sex and enjoy it more, finding it morephysically satisfying and emotionally satisfying than nonmarriedcouples. 10 7 The positive effect of marriage in preventing or reducingpoverty is hardly new information. Waite and Gallagher recount howBenjamin Franklin in 1785 told a bachelor friend who said he was toopoor to marry:

A single man has not nearly the Value he would have in that State ofUnion. He is an incomplete Animal. He resembles the odd Half of aPair of Scissors. If you can get a prudent, healthy Wife, your Industryin your Profession with her good Economy will be a Fortunesufficient.1

08

Marriage generally provides the best environment for raising children.Children of divorce or without fathers in their home are at the greatestrisk of crime, child abuse, premarital sex, premarital pregnancy, poverty,lower education, perform less well in school, and achieve less careersuccess. 10 9 Women and men are safer in marriage than out of marriage.Single and divorced women are four to five times more likely to bevictims of crime, ten times more likely to be victims of rape, and threetimes more likely to be victims of assault than married women.' 10 Singleand divorced men similarly are four times more likely to be victims ofviolent crime."' Likewise, comparing married and other women, ifmarried women experience domestic violence once, cohabitating womenwill experience it three times, single women twenty-five times, and theviolence will be more frequent and more serious.' 12 Waite and Gallagherconclude that marriage is not just one of a multiple of "equally good"alternative forms of family relationships, but it is the most superior formof family relationship. 13 Society and all its members incur the costs ofhigher crime, welfare, education, and healthcare expenditures and inreduced security for their own marital investments when marriagedisintegrates or is bypassed. "When society as a whole helps supportmarriage as an institution, we are all better off." 14

106. See id at 69-70.107. Seeid. at 79-85.108. Id. at 97.109. See id. at 124-34.110. Seeid at152.111. Seeid.112. Seeid. at 155-57.113. See id. at 186.

114. Id.

2003]

21



HOFSTRA LAW REVIEW

A host of other social science studies confirm and emphasize thebenefits of marriage-based families for society. For example, behaviorinvolving significant health risks, "including marijuana use, drinking anddriving, substance abuse, and the failure to maintain an orderlylifestyle," is substantially higher for divorced men and women than it isfor either widowed or married men and women." I5 Similarly, researchindicates "that married men and women face lower risks of dying at anypoint" than other persons." 6 A recent study of the relationship of maritalstatus and individual happiness reported that the strong positiverelationship between marital status and personal happiness exists insixteen of the seventeen nations examined." 7 The report found thatbeing married increased happiness equally for men and women, andmarriage was more than three times more closely associated withhappiness than was nonmarital cohabitation.' 8 Marital status is moreclosely associated with avoiding child poverty than any other factor. It issaid that more than half of the increase in child poverty in the UnitedStates between 1980 and 1988 "can be accounted for by changes infamily structure during the 1980s."" 9 According to a 1990 study the"relationship between crime and one-parent families" is "so strong thatcontrolling for family configuration erases the relationships betweenrace and crime and between low income and crime."'120 The likelihoodthat a young male "will engage in criminal activity doubles if he is raisedwithout a father, and triples if he lives in a neighborhood with a highconcentration of single-parent families."' 2' 1 Thus, the social science

115. Linda J. Waite, Does Marriage Matter?, 32 DEMOGRAPHY 483, 486-88 (1995).116. 1d.at488-89.117. See Steven Stack & J. Ross Eshleman, Marital Status and Happiness: A 17-Nation Study,

60 J. MARR. & FAM. 527 (1998).118. See id. at 534, 535.119. David J. Eggebeen & Daniel T. Lichter, Race, Family Structure, and Changing Poverty

Among American Children, 56 AM. Soc. REV. 801, 806 (1991). The study further indicated that"the official child poverty rate in 1988 would be approximately one-third less than the rate actuallyobserved" had family structure remained constant proportionally since 1960. Id.

120. ELAINE CUILLA KAMARCK & WILLIAM A. GALSTON, PUTTING CHILDREN FIRST: A

PROGRESSIVE FAMILY POLICY FOR THE 1990s 31 (1990).121. Kenneth F. Boehm, The Legal Services Program: Unaccountable, Political, Anti-Poor,

Beyond Reform and Unnecessary, ST. LOUIS U. PUB. L. REV. 321, 355 (1998); see also PersonalResponsibility and Work Opportunity Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105,§ 100(3)(o); M. ANNE HILL & JUNE O'NEILL, UNDERCLASS BEHAVIORS IN THE UNITED STATES:

MEASUREMENT AND ANALYSIS OF DETERMINANTS 91 (1993) (stating that "the father's absence isassociated with a 4 percent point increase in the probability of a jail sentence," and "being raised ina family that has no father, that is on welfare, that lives in public housing in a high welfareneighborhood is associated with rates of low work, going to jail, unwed fatherhood, and failure tocomplete high school that are roughly double the average").

[Vol. 32:349

22




evidence of the utilitarian benefits of marriage-based families forindividuals, society, and efficient government is overwhelming.

D. A Hybrid, Pragmatic Theory of The Role of Marriage inSustaining Constitutional Democracy

While convincing connections may be drawn between marriage andour constitutional system of liberties under all three theories reviewedabove (and others, like those reviewed by Professor Browning), 122 it islikely that the truth lies somewhere in between the theories. That is, it islikely that civic republicanism, liberalism, and utilitarianism all providevalid insights into the relationship between marriage and government,but that none of the theories is perfect or encompasses all of the truth.An eclectic or hybrid and pragmatic approach12 3 may provide a morecomplete perspective.

I suggest that society has an interest in promoting individualhappiness, and in encouraging social stability, and in fostering goodcitizenship, and in preventing the explosion of social problems, and thatthese interests gives it a direct interest in fostering secure, happy,

122. See supra text accompanying note 6.123. Pragmatic theory is usually ascribed to John Dewey, William James, and Charles Pierce.

See Alexei Sharov, Pragmatism and Umwelt-Theory, athttp://www.ento.vt.edu/-sharov/biosem/txt/umwelt.html (last visited Jan. 21, 2004)

(It is a monistic philosophy that assumes that all distinctions or boundaries are subjective(i.e., operational, instrumental, or conventional) .... Subjectivity does not mean purearbitrariness or randomness, instead it always has a component of self-interest orusefulness (hence the term 'pragmatism'). Because of usefulness, subjectivity is partiallypredictable. Usefulness implies activity that supports (or creates) existence (Dewey1998). It also implies that structures and boundaries have a meaning for the system,

because they perform functions that support the existence of the system .... Pragmatismsees the meaning of existence in its consequences .... The ethical principle ofpragmatism is to create existence by caring about consequences and to bring meaning tolife by doing this. In contrast, positivism is satisfied with a meaningless existence.);

see generally John Dewey, in INTERNET ENCYCLOPEDIA OF PHILOSOPHY, at

http://www.utm.edu/research/iep/d/dewey.htm (last visited Jan. 21, 2004); John R. Shook,Pragmatism is a Theory of Learning in its Natural and Historical Context, athttp://www.ghiraldelli.pro.br/shook.htm (last visited Jan. 21, 2004). "Legal pragmatism-whichessentially means solving legal problems using every tool that comes to hand, including precedent,tradition, legal text, and social policy-renounces the entire project of providing a theoreticalfoundation for constitutional law." Daniel A. Farber, Legal Pragmatism and the Constitution, 72MINN. L. REV. 1331, 1332 (1988). Farber's example of Roe v. Wade, 410 U.S. 113 (1973), as aparadigmatic example of legal pragmatism is not a very encouraging idea for those interested inprincipled legal analysis, much less the rule of law. See id. at 1366-76.

2003]

23



HOFSTRA LAW REVIEW

marriage-based families. 124 Marriage is the best, most promisingfoundation for lasting, growing, individual, and family happiness andsecurity. It also is "the very seedbed of democracy. Home is the placewhere we get our first ideas about ourself [sic], our attitudes towardother people, and our habits of approaching and solving problems."'1 25 Itis in the home that spouses as well as children learn lessons aboutcooperation and commitment, sharing and sacrifice, and obedience to theunenforceable that form the foundation for self-government. It is fromtheir marriages that husbands and wives learn how to make the best ofshortages, how to care for others, how to be happy, to love liberty, tofulfill one's duty, and the critical citizenship skills of mutual respect andcooperation. 126 It is in marriage and in raising children that most adultsrelearn the importance of and refine the techniques of sacrificing forothers, how to really care for the next generation, to look beyond thepresent, to nurture the basics of life and community. Theinterconnectedness of our lives, the first lesson of all government,especially self-government, is learned first (as children) and mostthoroughly (as spouses and parents) in the home. The home is the firstand the most important schoolhouse in a democracy. Husband and wife,as well as parents and children, learn the most important lessons ofhappy, successful living as they work together, play together, plantogether, cooperate together, laugh together, weep together, prospertogether, and share each others' pains and sorrows. It is in the home thattrust in others and in the future is nurtured-or hindered-and that is theindispensable prerequisite for democracy. Marriage-based families arebest for children, providing the potentially optimal environment in whichchildren may be conceived, raised, and taught the lessons of responsibleliving.

The normative nature and structure of marriage and family areclosely tied to the model of state authority. "[The family has a] criticalrole in raising good citizens .... The localist theory of family lawaffirms the vital role that families play in preserving the fundamental

124. See, e.g., CHRISTINE BEASLEY, DEMOCRACY IN THE HOME 11 (1954)

(The two fundamental ideas on which democracy rests are: (1) a belief in the worth,dignity, and creative capacity of every individual human being; and (2) a belief in thevalue of creative participation and co-operation of all individuals within a group. ...Democracy, then, is a process which succeeds only in so far as it achieves for each andevery one of its members the happiness, productivity, and creative relationships which itis his drive to seek; its success lies in its measure of harmony with the needs of man.).

125. Id. at 25.126. See, e.g., id. at 12 ("A basic feeling of respect for every individual human being, no

matter what his age or status or personal peculiarities, is the very cornerstone of democracy.")

[Vol. 32:349

24



THE BONDS OF M TRIMONY

liberal values underlying the constitutional structure. 1 27 This is true notjust in western societies. In Japan, for example, the structure of thefamily and the cultural values inculcated by the family affect thesuccessful use of informal dispute resolution procedures in courts.1 8

And after World War II, the Allies insisted on the dismantling of thetraditional Ie family structure in Japan because they believed that therewas a direct link between that potentially autocratic family form and thesocial, political, and militaristic values of the nation.' 29

Marriage structures that underscore public commitment are animportant foundation for self-government because such marriages are asmuch for the community as for the individuals. Couples say their vowsfor the community who gather to witness them pledge their troth to eachother.' 30 Their marriage reaffirms a community value, the identity of thecommunity and of the couple.

The concept of marriage is founded on the factual reality that theunion of two persons of different genders creates something unique, aspecial relationship of unique potential strengths and inimitable potentialvalue to society. The integration of the universe of gender differences(profound and subtle, biological and cultural, psychological and genetic)associated with sexual identity constitutes the core and essence ofmarriage. The heterosexual dimensions of the relationship are at the verycore of what makes "marriage" what it is, and why it is so valuable toindividuals and to society. 31

The relationship between two persons of the same sex isfundamentally different from heterosexual "marriage" because men andwomen are fundamentally different. Marriage is unique. No othercompanionate sexual relationship provides the same great potential forbenefiting individuals and society as the life-time covenant union of aman and a woman. In the words of Professor Daniel Cere:

Marriage promotes a unique public form of life and culture geared tobridging the sex-divide; it sustains a complex form of socialinterdependency between men and women; it provides a social framefor heterosexual procreativity; it supports an integrated form of

127. Dailey, supra note 46, at 1792-93.128. See generally Taimie L. Bryant, Family Models, Family Dispute Resolution and Family

Law in Japan, 14 UCLA PAC. BASIN L.J. 1 (1995).129. See Lynn D. Wardle, "Crying Stones": A Comparison of Abortion in Japan and the

United States, 14 N.Y.L. SCH. J. INT'L & COMP. L. 183, 195 (1993).

130. See, e.g., MASSEY HAMILTON SHEPHERD, JR., THE OXFORD AMERICAN PRAYER BOOK

304 (1963).131. See Lynn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex Marriage,

1996 BYU L. REv. 1, 38-39 (1996).

20031

25



HOFSTRA LAWREVIEW

parenthood (genetic, gestational and social); and it treasures andmaintains connections between children and their natural parents.132

The bonding of male and female are essential features of humanexistence and of marriage.

Marriage is an institution that attempts to work with this vast andcomplex domain of cross-sex bonding social life. It provides social-sexual intimacy for male-female bonding. This unique and ever-evolving institution constantly struggles to adapt changing social andcultural contexts in order to nurture stable conjugal unions that spanthe sexual divide between men and women. 133

Marriage protects and channels:

the fundamental facets of conjugal life: the fact of sexual difference;the enormous tide of sexual desire in human life; the massivesignificance of male/female bonding in human life; the procreativity ofheterosexual bonding, the unique social ecology of heterosexualparenting which bonds children to their biological parents, and the richgenealogical nature of heterosexual family ties. 134

At least eight social interests (or groups of interests, since all ofthese interests are multifaceted) for marriage can be identified that relateto the questions addressed by this conference. These include (1) safesexual relations, (2) responsible procreation, (3) optimal child-rearing,(4) healthy human development, (5) protecting those who undertake themost vulnerable family roles for the benefit of society, especially wivesand mothers, (6) securing the stability and integrity of the basic unit ofsociety, (7) fostering civic virtue, democracy, and social order, and(8) facilitating interjurisdictional compatibility.

On the basis of history and common experience across cultures,advocates of preserving marriage exclusively for male-female couplesmay reasonably assert that committed heterosexual unions we callmarriages make unique and important contributions to achieving thesepublic and social purposes of marriage. Committed heterosexual unionsof marriage seem to provide the best setting for the safest and mostbeneficial expression of sexual intimacy. Heterosexual marriage alsoappears to provide the best environment into which children can be

132. Daniel Cere, Marriage/Parenthood, Laws of Dissolution 5 (Mar. 12, 2003) (copy on filewith author).

133. Id. at 14-15.134. Id. at 15.

[Vol. 32:349

26




born. 3 5 Heterosexual marriage likely provides the most advantageous

environment in which children can be reared, providing profoundbenefits of dual-gender parenting to model inter-gender relations andshow children how to relate to persons of their own and the opposite

gender. Heterosexual marriage arguably provides the most enriching andliberating relationship to facilitate human adults to personally developand achieve their fullest potential. Heterosexual marriage historically has

provided the best security for those who take the greatest risks and investthe greatest personal effort in establishing and maintaining families,

especially wives and mothers. Heterosexual marriage seems to providethe strongest and most stable companionate unit of society, and the most

secure setting for intergenerational transmission of social knowledge andskills, and reflects the understanding of marriage that has been constantacross cultures and throughout history. 136

Marriage is of such profound importance to society that there isgreat danger if its meaning and definition become ambiguous. It could

be said that changing the meanings of marriage would be like movingthe furniture in the house of a person who is blind.'37

V. THE DESTRUCTION OF CONSTITUTIONAL GOVERNMENT BY

"MODERNIZING" DOMESTIC RELATIONS

Francis Grund, the Austrian counterpart and contemporary ofAlexis de Tocqueville, emphasized the importance of preserving our

domestic virtue in words that are very sobering in light of the challenges

to marriage and family today. He wrote:

I consider the domestic virtue of the Americans as the principalsource of all their other qualities....

No government could be established on the same principle as thatof the United States, with a different code of morals. The AmericanConstitution is remarkable for its simplicity; but it can only suffice apeople habitually correct in their actions, and would be utterlyinadequate to the wants of a different nation. Change the domestichabits of the Americans, their religious devotion, and their highrespect for morality, and it will not be necessary to change a single

135. See infra Part IV.C.136. Lynn D. Wardle, "Multiply and Replenish '" Considering Same-Sex Marriage in Light of

State Interests in Marital Procreation, 24 HARV. J.L. & PUB. POL'Y 771, 780 (2001).

137. Institute for American Values, Consultation on Same-Sex Marriage, Cambridge,Massachusetts, Apr. 2003.

2003]

27



HOFSTRA LA W RE VIEW

letter in the Constitution in order to vary the whole form of theirgovernment.

3 8

Proposals to abolish marriage (per Professor Fineman) or legalize same-sex marriage would radically "change the domestic habits of theAmericans" that inevitably would lead to a radical variation of ourconstitutional government.

Society can accommodate some "free riders" living in alternative,nonmarital relationships. Our democratic society can carry onadequately despite some family form deviation, some domestic failure,some breakdown of family integrity, but when the quantity of thoseproblems become significant, they burden the entire society andundermine society and its institutions.

[Society] requires a critical mass of married, two-parent families, bothto raise their own children well and to serve as models for those whoare being reared outside of the "conventional" family. The greattragedy today is that there are communities--especially low-incomecommunities-where we have already lost that critical mass. 139

The price of devaluing marriage is being paid already by many inour society who have suffering, broken, and dysfunctional families, whohave experienced sorrow, pain, and regret. It is paid by society ingeneral in heightened incidence and rates of premarital sexualexploitation and pregnancy, nonmarital childrearing, single parenting,juvenile crime, lowered academic achievement, increased physical andmental health problems, drug use and alcohol abuse, increased poverty,and reduced productivity. If we embrace the legalization of alternativefamily forms as equivalent to marriage, the toll will be even higher.

Society has an interest in fostering family structures that producethese kinds of positive and socially beneficial results, results that avoidlost productivity, reduce tax expenditures for medicines, health services,social security, and prevent to some degree the social costs of brokenhomes. Thus, society has a direct and measurable interest in fosteringgood, happy marriages, and stable, loving families.

Once the institution of marriage slips off its foundation, it is verydifficult to restore. The family demographer William Goode suggestedthat after marriage is weakened in a society it is nearly impossible torevitalize it without perhaps some traumatic and dramatic externalpressure such as military conquest, economic collapse, or natural

138. GRUND,supra note 25, at 171 (emphasis added).139. Wade F. Horn & Andrew Bush, Fathers and Welfare Reform, PUB. INT. 38,42 (1997).

[Vol. 32:349

28




disaster of widespread proportions. 140 One wonders whether even thoseexternal disasters are not a natural consequence of radical alteration ofthe foundation of a society.

Conferring the label and legal status of "marriage" on same-sexunions and other noncapital relationships will not magically transformthem into the kind of socially valuable units historically called marriage.The defect of that classic Kelsenian 141 (positivist) flaw was exposed byAbraham Lincoln when he asked how many legs a dog would have ifyou counted a tail as a leg. To the response "five legs," Lincoln said,"No; calling a tail a leg doesn't make it a leg."'142

Viewed from almost any credible theoretical framework, includingcivic republicanism, liberalism, utilitarianism, and pragmatism, it can beshown that marriage is the seedbed of government. The bonds ofmarriage are reflected in the bonds of citizenship, and the bonds that tieus to support and preserve our constitutional government imitate thebonds of responsible marriage-based families. Our Constitution wasfounded on a particular vision of marriage. An abolition or radicalredefinition of marriage will have extreme consequences for ourgovernment, probably within a generation. 14

140. See WILLIAM J. GOODE, WORLD CHANGES IN DIVORCE PATTERNS 318, 335-36 (1993).

141. Hans Kelsen was one of the leading exponents of legal positivism in the civil law system.See, e.g., HANS KELSEN, GENERAL THEORY OF LAW AND STATE (1945) (discussing the

philosophical foundations of legal positivism in the civil law system); HANS KELSEN, PURE THEORYOF LAW 1-69 (Max Knight trans., 1967) (describing positivist theory of law); Hans Kelsen, TheNatural-Law Doctrine Before The Tribunal of Science, in WHAT IS JUSTICE? JUSTICE, LAW ANDPOLITICS IN THE MIRROR OF SCIENCE: COLLECTED ESSAYS BY HANS KELSEN 137, 141 (1957)(describing legal positivism).

142. See Stephen A. Newman, Baby Doe, Congress and the States: Challenging the FederalTreatment Standard for Impaired Infants, 15 AM. J. L. & MED. 1, 15 n.56 (1989) (quoting J.BARTLETT, THE SHORTER BARTLETT'S FAMILIAR QUOTATIONS 218(d) (1961)).

143. One wonders whether some extreme developments in constitutional doctrine in recentyears, and the authoritarian attitudes reflected in decisions disregarding federalism, less consensus-building, more "hard-ball" politics, etc., are not the result of the radical loosening of the bonds ofmarriage more than a generation ago (e.g., by the adoption of unilateral, no-fault divorce in the early1970s). See Lynn D. Wardle, Legal Claims for Same Sex Marriage: Efforts to Legitimate a Retreat

from Marriage by Redefining Marriage, 39 S. TEX. L. REV. 735, 762-66 (1998).

2003]

29



30



the bonds of matrimony and the bonds of constitutional

Documents